In re Pena
| Decision Date | 16 June 2015 |
| Docket Number | Interim Decision #3842 |
| Citation | 26 I&N Dec. 613 |
| Parties | Matter of Alcibiades Antonio PENA, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
An alien returning to the United States who has been granted lawful permanent resident status cannot be regarded as seeking an admission and may not be charged with inadmissibility under section 212(a) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (2012), if he or she does not fall within any of the exceptions in section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012). Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003), distinguished.
FOR RESPONDENT: Michele H. Kane, Esquire, Boston, Massachusetts
BEFORE: Board Panel: COLE and WENDTLAND, Board Members. Dissenting Opinion: PAULEY, Board Member.
COLE, Board Member:
In a decision dated November 14, 2011, an Immigration Judge found the respondent inadmissible under sections 212(a)(6)(C)(i), (ii)(I), and (7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(6)(C)(i), (ii)(I), and (7)(A)(i)(I) (2006), and ordered him removed from the United States. The respondent has appealed from that decision. The appeal will be sustained and the record will be remanded to the Immigration Judge.
The respondent is a native and citizen of the Dominican Republic. The record reflects that he was married to a United States citizen who filed a visa petition on his behalf. Based on the September 9, 1996, approval of the visa petition, the respondent filed an application for adjustment of status on December 1, 1999. He indicated on his application that he had no prior arrests. However, at an interview in connection with his application, the Government notified the respondent that its records showed that he had been charged with passport fraud by the Department of State passport office on December 28, 1998. The respondent was asked to provide documentation regarding the final disposition of these charges, which he submitted. On June 5, 2000, the respondent's application for adjustment of status was granted and he was accorded lawful permanent resident status.
On May 24, 2010, the respondent sought to reenter the United States after a trip abroad. At that time he gave a sworn statement in an interview with immigration officials. When asked whether he had ever been arrested, the respondent first replied that he had been arrested in 1998 for applying for a United States passport using the birth certificate and Social Security card of another person. When asked why he indicated that he had never been arrested on his adjustment of status application, the respondent said he thought he had not been arrested in relation to the passport application because he had voluntarily appeared at the passport office after learning from his wife that he was being investigated.1 He stated that he was fingerprinted at the office and released. He further explained that he was neither charged with nor convicted of passport fraud or any other offense.
After the respondent's interview on May 24, 2010, the Department of Homeland Security ("DHS") issued a notice to appear charging the respondent as inadmissible based on his alleged fraud and prior ineligibility for adjustment of status. At a hearing before the Immigration Judge, the respondent denied the charges. Applying Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003), the Immigration Judge determined that the respondent had never been accorded lawful permanent resident status because he was ineligible for adjustment of status at the time that he applied. Specifically, the Immigration Judge found that the respondent made a false claim to United States citizenship by knowingly purchasing an illegally obtained birth certificate and Social Security card and that he did not disclose his arrest in this regard in his adjustment of status application.
Based on these findings, the Immigration Judge concluded that the respondent's permanent resident status was unlawfully obtained and that he could therefore be deemed an "arriving alien" and charged under section 212(a) of the Act.2 He then found the respondent inadmissible as charged. The Immigration Judge further found the respondent ineligible for relief from removal and ordered him removed from the United States.
The threshold issue in this case is whether the respondent, who was granted lawful permanent resident status, can be charged in removal proceedings under section 212(a) of the Act as an arriving alien seeking admission, since he does not fall within any of the exceptions listed insection 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012), which allow for an alien lawfully admitted for permanent residence to be regarded as seeking admission to the United States.3
We must resolve the question whether a returning lawful permanent resident can be treated as an arriving alien based on an allegation that he acquired his status unlawfully. We conclude that an alien returning to the United States who has been granted lawful permanent resident status cannot be regarded as seeking admission and may not be charged with inadmissibility under section 212(a) of the Act if he does not fall within any of the exceptions in section 101(a)(13)(C) of the Act.
The respondent argues that he has not been properly charged and that these proceedings should have been terminated. He first contends that he should not have been charged as an arriving alien when he returned to the United States because his eligibility for adjustment of status had not been determined at the time of his return. He asserts that if the DHS suspected he was inadmissible at the time he adjusted his status, he should have been allowed to enter as a returning resident and charged with a ground of deportability in section 237(a) of the Act, 8 U.S.C. § 1227(a) (2012).
The respondent also disputes the Immigration Judge's determination that he "willfully misrepresented a material fact" in his application for adjustment of status, in which he indicated that he had never been arrested. The respondent claims that he was not aware that his contact with the Department of State's passport office constituted an arrest. He notes thathis adjustment application was granted after he submitted all of the information requested in that regard.
In deciding whether the respondent is an arriving alien, we examine the language of the statute to determine whether Congress expressed a plain and unambiguous intent that aliens in the respondent's circumstances should be considered applicants for admission under section 101(a)(13)(C) of the Act. See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (); Matter of Valenzuela, 25 I&N Dec. 867, 869 (BIA 2012). Whether language is plain and unambiguous is "determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. at 341.
The plain language of section 101(a)(13)(C) indicates that an alien who does not fall within one of the statutory exceptions and who presents a colorable claim to lawful permanent resident status is not to be treated as seeking an admission and should not be regarded as an arriving alien. See also Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988) ().
In addition to the plain language of the statute, we find further support for our position in our case law interpreting the "Fleuti doctrine," which predated section 101(a)(13)(C) of the Act. Rosenberg v. Fleuti, 374 U.S. 449 (1963).4 For example, in Matter of Rangel, 15 I&N Dec. 789 (BIA 1976), we addressed whether a lawful permanent resident's attempted return constituted an "entry" where her original admission for permanentresidence was unlawful because it involved a false claim. In that case, we had to decide first whether the proper forum in which to adjudicate the lawfulness of an original admission was a deportation proceeding or an exclusion proceeding.5 We held that the alien was not making an entry within the meaning of the Act and, therefore, that the proper forum for adjudicating the lawfulness of her original admission was a deportation proceeding. Id. at 791-92.6
The question addressed in Matter of Rangel is analogous to that now before us, namely, whether a returning permanent resident who is suspected of unlawfully acquiring his or her status should be placed in exclusion proceedings (now charged with inadmissibility) or deportation proceedings (now charged with deportability). Our decision in Rangel comported with the Supreme Court's recognition of the constitutional right of due process that is owed to lawful permanent residents. See Landon v. Plasencia, 459 U.S. 21, 30-32 (1982) (citing Chew v. Colding, 344 U.S. 590 (1953)).7
Prior to the 1996 enactment of section 101(a)(13)(C) of the Act, the proper forum for determining whether a lawful permanent resident had unlawfully obtained his status would have been a deportation proceeding, rather than an exclusion proceeding, unless he was making an "entry." Applying the same rationale to the current law, an alien in the respondent's circumstances should be charged under section 237(a) of the Act, rather than section 212(a), unless he can be regarded as seeking an admission under section 101(a)(13)(C).8
In light of the plain statutory language of section 101(a)(13)(C) of the Act and the above-mentioned decisions of the Supreme Court and the Board, we believe that the long-established...
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